RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02043 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: Her deceased former spouse records be corrected to reflect former spouse coverage under the Survivor Benefit Plan (SBP) naming her as the eligible beneficiary. _________________________________________________________________ APPLICANT CONTENDS THAT: Her former spouse retired on 1 Jun 73. They divorced on 6 Nov 75. She was excluded as beneficiary of the SBP from the date of their divorce. Her spouse was ordered by the divorce decree to continue former spouse coverage but he failed to do so. He was required to elect former spouse coverage during an open season but again failed to do so. She was notified of the death of her former spouse by a former in-law. The death certificate is in error and lists a new spouse. If her former spouse had elected SBP coverage for his new wife, she would have been required to waive her rights to SBP coverage. She is barred from receiving the SBP annuity. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: While married, the member elected spouse and child coverage based on a reduced level of retired pay under the SBP prior to his 1 Jun 73 retirement. On 6 Nov 75, the parties divorced before the laws controlling the SBP authorized former spouse coverage; therefore, the applicant lost eligibility as a spouse beneficiary on the date of divorce and the SBP converted to child only coverage. The property settlement required the member to retain the applicant as primary beneficiary on his civilian insurance policy. On 5 Feb 80, the findings and order of a civil action suit contains a reference to include “military insurances” but does not specifically mention the SBP. The court document contains a statement that the member testified he remarried 15 Dec 78. The decedent’s records in the Defense Enrollment Eligibility Reporting System (DEERS) contain no information he obtained an identification card for a subsequent spouse. There was no child beneficiary eligible to receive SBP payments effective Feb 90 when the youngest child attained age 22. There is no evidence the member submitted an election for former spouse coverage during the opportunities provided by Public Laws 98-84 or 99-145. On 17 Sep 90, the member died and his death certificate reflects he was married to XXXX at the time of his death. However, the Defense Finance and Accounting System-Cleveland Center (DFAS-CL) is not paying SBP to any individual based upon the decedent’s military service. _________________________________________________________________ AIR FORCE EVALUATION: DPSIAR recommends denial. DPSIAR notes the decedent’s spouse became an eligible SBP beneficiary on the first anniversary of their marriage by operation of law. However, there is no evidence she applied for payment of the SBP within six years of the member’s death as required by the Barring Act. The Air Force office of primary responsibility searched the internet for the widow, but did not contact the woman they located in Colorado Springs, CO. Since no SBP annuity would be payable to her because she did not file a claim for SBP within six years of the member’s death, DPSIAR is not certain she is considered as a competing claimant. The complete DPSIAR evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel reiterates many of the earlier contentions and states the death certificate reflecting XXX as the decedent’s wife cannot be substantiated. There is also a discrepancy in the decedent’s rank. The term “military insurances” refers to insurances that existed at the time of marriage which included spousal benefits. The decedent failed to elect former spouse coverage in violation of the court order. Discussions regarding XXX as the eligible SBP beneficiary by operation of law on the first anniversary of their marriage are moot since these parties were never in fact married. There is no record of marriage at the time of his death. The death certificate is erroneous. There is no record of the decedent’s remarriage; therefore, there is no eligible competing claimant the Board should grant the requested relief. The counsel’s complete statement is at Exhibit D. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. While counsel argues the former member never married; the evidence of record, specifically, the death certificate states otherwise. We note counsel contentions that the former member was in violation of the court order because he failed to elect former spouse coverage. However, as pointed out by DPSIAR, the parties divorced on 6 Nov 75, prior to the laws controlling the SBP authorizing former spouse coverage. Therefore, we do not find the failure of the former member to comply with the terms of the divorce decree sufficient to perpetuate an injustice against the current spouse. Although the AFBCMR has the authority, it should not rule on a possible dispute between two claimants to a benefit that only one of them can receive. Furthermore, it is not appropriate for the Board to adjudicate such a dispute since that task is more properly left to the courts. Absent persuasive evidence that she was denied rights to which she was entitled, we find no basis to recommend granting the relief sought in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered this application in Executive Session on 13 Mar 13, under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-02043: Exhibit A. DD Form 149, dated 7 May 12, w/atchs. Exhibit B. Letter, AFPC/DPSIAR, dated 15 Jun 12. Exhibit C. Letter, SAF/MRBR, dated 25 Jun 12. Exhibit D. Letter, Counsel, dated 11 Jul 12 w/atchs. Panel Chair